Ex-AG pushes to alter bribery law

If you represent U.S. businesses and want to scale back an anti-corruption law, what do you do?

Hire the nation’s former top law enforcement official.

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The U.S. Chamber of Commerce has recruited former Attorney General Michael Mukasey to press its case for reining in an American law that bans bribery overseas — and for softening the Obama administration’s aggressive enforcement of it. The Foreign Corrupt Practices Act makes it a crime for U.S. companies to pay bribes or offer any “thing of value” to a foreign official to advance the corporation’s interest.

Many advocates for business say enforcement of that law has been too strict, injuring America’s ability to win in a global economy. They also cite lengthy investigations and hefty legal fees over transactions that wouldn’t qualify as traditional bribes, such as giving money to non-government officials, buying dinner for business contacts or even paying for their taxi rides.

Enter Mukasey, a former federal judge whom President George W. Bush brought in to clean up a scandal-tarnished Justice Department in 2007. After leaving the Justice Department, Mukasey returned to New York, joined the firm of Debevoise & Plimpton and began taking on corporate clients, including the Chamber and News Corp.

“The law itself has a couple of problems with it,” Mukasey told POLITICO. He said the business community mainly wants the wording clarified. “In some countries, enterprises are state-owned, so everybody’s a foreign official. You take somebody out to dinner that’s intended to get you a competitive benefit and, boom: You get an investigation.”

Lanny Breuer, chief of the department’s criminal division, said he’s troubled by suggestions that payments to individuals to win business are above board if they work for private companies and not government-owned ones.

“Corporate bribery, whether of government officials or commercial bribery, is bad for business in general and just plain wrong,” Breuer said in an interview with POLITICO.

“I don’t really accept the fact that the FCPA is truly a burden on American business,” he added. “Our companies should compete based on the quality of their products and the quality of their services and not based on corruption. [And] it’s not as if we’re only prosecuting American companies. Half our [cases involve] foreign companies or foreign subsidiaries” that do business in the U.S. or are traded on a U.S. stock exchange.

The number of prosecutions under the anti-corruption statute roughly doubled to 74 in the first two years of the Obama administration, compared with 38 during the last two years under Bush and near-dormancy in the years before that. The Justice Department boasted in January that the $1 billion in penalties it recovered for violations in fiscal 2010 was “the largest in the history of FCPA enforcement” and accounted for roughly half of all financial penalties and restitution obtained that year by DOJ’s criminal division.